Question: I run a business with over 100 employees and I am confused about the pay data I have to report to the EEOC.   I submitted the EEO-1 report by the May 31 deadline but now I am being told that I need to submit additional information.  What do I do?

Answer: Since 1966, as part of efforts to regulate compliance with federal equal employment opportunity laws, the Equal Employment Opportunity Commission (EEOC) has required private employers with 100 or more employees to submit EEO-1 reports on an annual basis. Federal government contractors and first-tier subcontractors with 50 or more employees and at least $50,000 in contracts must file as well. These annual reports are due May 31 of each year and historically contain information about the number of employees employed by job category, race, sex, and ethnicity.  The EEOC refers to this as Component 1 data.  While the EEOC uses these reports internally for compliance investigations, the reports are also used by agencies and private litigants in employment discrimination cases.

In 2016 the EEOC announced its intention to expand the EEO-1 reporting requirements to include reporting of employees’ W-2 earnings and hours worked in 12 pay categories (Component 2 data). The collection of Component 2 data was subject to approval of the Office of Management and Budget (“OMB”), which initially granted approval in September 2016.  The expanded collection of data on the EEO-1 was to be effective in late 2017.  However, in August 2017, the OMB issued a stay, ordering the EEOC not to collect Component 2 data.

Thereafter, employee advocate groups, including the National Women’s Law Center, filed actions against the OMB and EEOC seeking to require the EEOC to collect the Component 2 data.  In March 2019, a federal judge in Washington D.C. agreed with the plaintiffs, finding that the OMB’s stay of the collection of W-2 and pay data was not justified.   On April 25, 2019 the Court issued a second order, directing the EEOC to collect 2018 hours worked and pay data by September 30, 2019.  The Court also directed the EEOC to collect an additional year of W-2 and hours worked pay data from covered employers, but gave the EEOC the option of collecting the data for either calendar year 2017 or 2019.  The EEOC has announced that it will collect Component 2 data for 2017.

On May 3, 2019, the Department of Justice filed a notice of appeal in the National Women’s Law Center case.  While the decision on appeal may change the required EEO-1 reporting requirements again, for now employers with 100 or more employees are required to submit Component 2 data to the EEOC on the EEO-1 form for both 2017 and 2018 by September 30, 2019.  The Component 2 data includes wage information from Box 1 of employees’ W‑2 forms and total hours worked for all employees, categorized by race, ethnicity and sex, within the 12 pay categories.  The EEO-1 report should show actual hours worked by nonexempt employees, an estimated 20 hours worked per week for part-time exempt employees, and 40 hours worked per week for full-time exempt employees.

The EEOC created a web-based portal for employers to submit Component 2 data, and that portal is currently open. The URL for the portal is https://eeoccomp2.norc.org.  The EEOC also released a sample form, instructions and FAQs to help employers submit the Component 2 data, accessible at https://eeoccomp2.norc.org/Faq